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Bush-era torture memos cast doubt on human rights nominee’s approval

Sen. Robert Menendez said the administration had not been transparent on two separate matters relating to Billingslea’s background

Marshall Billingslea prepares to testify during a House Foreign Affairs Committee hearing in 2017.  Billingslea’s nomination is in doubt because lawmakers say the Trump administration has not turned over information relating to Billingslea’s background. (Tom Williams/CQ Roll Call file photo)
Marshall Billingslea prepares to testify during a House Foreign Affairs Committee hearing in 2017.  Billingslea’s nomination is in doubt because lawmakers say the Trump administration has not turned over information relating to Billingslea’s background. (Tom Williams/CQ Roll Call file photo)

The future of a Trump nominee to serve as the executive branch’s highest-ranking human rights official is in doubt following a difficult Senate Foreign Relations confirmation hearing and lawmakers’ frustration over how the nomination has been muscled through.

With last week’s confirmation hearing of Marshall Billingslea to be the next undersecretary of State for civilian security, democracy and human rights, Committee Chairman Jim Risch, R-Idaho, broke with a decades-long tradition of agreement between the Republican and Democratic panel leaders when scheduling committee hearings and markups.

[Issa hearing delayed after dispute over background investigation]

Ranking member Robert Menendez, D-N.J., with the support of all committee Democrats, had been withholding consent to schedule a confirmation hearing for Billingslea and another nominee, former Rep. Darrell Issa, R-Calif., because of information gaps in their background files.

Billingslea was originally nominated to be undersecretary of State last August before being renominated in January at the start of the new Congress.

All 10 Democratic committee members, led by Menendez, previously sent a letter to Risch demanding he not break tradition in scheduling the confirmation hearings for Billingslea and Issa without Democrats’ agreement. The letter has not been made public but its contents were broadly described by a committee aide last week.

“We requested that you not move forward with Mr. Billingslea and Mr. Issa until members had the information needed to assess whether these two nominees are fit for confirmation. Instead, we are being asked to evaluate two nominees without knowing the facts,” the senior New Jersey senator said at the start of the hearing last week. “There is information that the White House controls and this administration refuses to share. And I’m not talking about a nominee’s favorite color or where they had dinner. I’m talking about serious issues that go to credibility and suitability for these positions.”

[Ex-Rep. Issa gets confirmation hearing, muddling potential comeback]

Issa’s confirmation hearing was ultimately postponed, with the ex-lawmaker’s consent. However, the hearing for Billingslea went forward despite concerns from Democrats and Sen. Rand Paul, R-Ky., that they did not have all of the necessary information to question Billingslea, who currently serves as assistant Treasury secretary for terrorist financing.

At the hearing last week, Menendez said the administration had not been transparent on two separate matters relating to Billingslea’s background. The first related to his role during the early years of the George W. Bush administration as a leading proponent within the Defense Department of interrogation practices that have since been ruled illegal and deemed to constitute torture.

It took the administration months to provide the committee with memos on torture practices that Billingslea authored or approved in his capacity as the then-principal deputy assistant Defense secretary for special operations and low-intensity conflict, according to Menendez; memos that were “directly relevant” to his current nomination to lead U.S. human rights policy.

“From the beginning, it was clear that documents were, according to the [Pentagon], ‘missing’ – missing attachments, missing pages, but each time, the administration, and the chairman’s staff, said that this was it. ‘The search was complete.’ ‘Don’t be ridiculous.’ ‘Stop asking.’ And then, when we pressured, they would find more,” Menendez said, noting his staff first began pursuing the memos last November after Billingslea was first nominated.

Little else is publicly known about the second matter raised by Democrats, other than it “pertains to a concerning incident that we have sought more clarity and details on, but have been stonewalled,” Menendez said last week, adding later the nature of the allegations against Billingslea could be embarrassing and thus inappropriate for discussion in an open forum. “It was only until this morning — in a way that I am unable to ascertain the veracity of it — that Mr. Billingslea has come forward with some information.”

Nominee grilled on torture memos

Menendez said he was particularly troubled by an Oct. 10, 2002, memo that Billingslea wrote to then-Defense Secretary Donald Rumsfeld on “Detainees at Gitmo,” right around the same time as U.S. military officials requested the approval of certain interrogation techniques for detainees held at Guantánamo Bay, Cuba.

A 2008 bipartisan Senate Armed Services Committee report subsequently found those techniques, which Rumsfeld approved in December 2002, “influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, stress positions in Afghanistan and in Iraq.”

“While, in this setting, I cannot say exactly what you wrote in that memo, I can say that I found it very disturbing, and I urge my colleagues on both sides of the committee to read that important memo,” Menendez said.

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In a subsequent April 2003 memo to Rumsfeld, titled “Interrogation Methods for Gitmo,” Billingslea sought to persuade the secretary that he should approve 11 additional interrogation techniques. The methods in question had all been recommended by a “Working Group” established by Rumsfeld but the defense chief had authorized only 24 of the list of 35 methods. Billingslea in his memo called the 11 additional techniques “not controversial from either a legal, or policy standpoint.”

Those techniques were subsequently found by the Armed Services Committee report to have led to human rights abuses of detainees in Afghanistan and Iraq. They included hooding, threatening to transfer a detainee to a third-party country, prolonged standing, forced grooming, forced physical exercise and face and stomach slaps.

Billingslea, who early in his career was a Senate Foreign Relations staffer, defended himself by referencing the confusing and “dark days” after the September 11 attacks. He noted he was at the Pentagon the day American Airlines Flight 77 struck the building, killing 125 people inside, in addition to all those on board the plane.

“If I were ever called upon — and I hope never to be again — to have a view on these matters, I would without question uphold the law and reject anything not contained in the Army Field Manual,” Billingslea said at the hearing, arguing he had worked to “bring order to an orderless, chaotic process at Gitmo.”

But that defense was inadequate for Paul, who regularly sets himself apart from his Republican colleagues on matters of war and peace.

“You did support 11 additional enhanced interrogation techniques, which are now illegal. Whether we call them torture or not,” Paul said. “I think it’s great now that you don’t believe in torture, and you obey the law, but I do question whether or not this is a problem. At the time, you were advocating … to go beyond even what Rumsfeld was willing to approve.”

Billingslea’s argument also didn’t wash with Menendez. “You were clearly not among the group who sought to oppose that torture,” Menendez said. “What you’re claiming is that you were trying to put order around a disorderly process. Well, that’s bureaucratic jargon. What it means is that you furthered the machinery of torture. You put a process around memos, decisions, et cetera, but you didn’t seek to stop it. You advocated for it, and then you helped advance the development and implementation of torture. So, you can’t change history or hide from it in bureaucratic jargon.”

Billingslea’s nomination is opposed by a large coalition of human rights and anti-war groups including Amnesty International USA. The groups view confirming him as a human rights senior official as a particular stick in the eye given his past advocacy for torture practices.

The coalition sent a letter last week to the Senate Foreign Relations Committee, urging members to vote against the nomination given Billingslea’s lack of “relevant background and experience concerning the vast majority of tasks that fall under the purview” of the undersecretary and because someone with his track record of “endorsing torture and other ill-treatment” should not be the face of U.S. human rights around the world.

He has received support, however, from prominent Venezuelan political dissidents including Juan Guaido, who the United States recognizes as the rightful interim president of the country. In his Treasury role, Billingslea has played a leading role in the sanctioning of Venezuelan officials in the government of Nicolás Maduro. He has also been heavily involved in the sanctioning of human rights violators in Nicaragua and Myanmar.

It is not clear if Risch will schedule a committee confirmation vote without consent from Menendez.

In July, Risch flirted with breaking committee tradition over the handling of a Saudi Arabia policy bill that the White House opposed. Ultimately, though, he backed off from scheduling a markup without Menendez’s consent after the senior New Jersey senator convinced him that to do otherwise would threaten the good working-order of the committee and result in chaotic business meetings where all manner of amendments could be offered and debated.

Clarification 5:48 p.m. | This story has been clarified to reflect that Donald Rumsfeld declined to authorize all of the enhanced interrogation techniques recommended to him by a working group after 9/11. He approved 24 of 35 recommended techniques.

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